State of Louisiana Versus Jerel Smith

STATE OF LOUISIANA NO. 24-KH-198

VERSUS FIFTH CIRCUIT

JEREL SMITH COURT OF APPEAL

STATE OF LOUISIANA

June 10, 2024

Linda Wiseman
First Deputy Clerk

IN RE JEREL SMITH

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT,
PARISH OF ST CHARLES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE CONNIE M.
AUCOIN, DIVISION "C", NUMBER 17-00030

Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Scott U. Schlegel

WRIT GRANTED

Relator, Jerel Smith, filed a pro se writ application, seeking review of the

district court’s April 2, 2024 judgment denying his First Uniform Application for

Post-Conviction Relief (“APCR”). After review, we grant this writ application and

remand the matter to the district court.

PROCEDURAL BACKGROUND

On May 11, 2018, a jury found relator guilty of second degree murder and

armed robbery. On June 14, 2018, he was sentenced to life imprisonment at hard

labor for second degree murder and ninety-nine years imprisonment for armed

robbery. Both sentences were ordered to be served without benefit of parole,

probation, or suspension of sentence and to run concurrently. On March 13, 2020,

this Court affirmed relator’s convictions and sentences for second degree murder

and armed robbery. State v. Smith, 19-395 (La. App. 5 Cir. 3/13/20), 293 So.3d

24-KH-198

732.1 Relator did not file a writ application seeking review with the Louisiana

Supreme Court.

Relator filed his APCR with the district court on March 21, 2024, raising

claims of ineffective assistance of counsel, denial of right to testify, and erroneous

jury instruction. On April 2, 2024, the district court denied relator’s rule to show

cause as to why his APCR should not be granted and denied his “application in

accordance with La. C.Cr.P. art. 930.8.”

LAW AND DISCUSSION

In the instant application, relator maintains that the district court erred by

finding his APCR was untimely under La. C.Cr.P. art. 930.8 because he originally

filed his APCR on December 13, 2021.

La. C.Cr.P. art. 930.8(A) provides in pertinent part: “No application for

post-conviction relief including applications which seek an out-of-time appeal,

shall be considered if it is filed more than two years after the judgment of

conviction and sentence has become final.”

In the instant case, relator’s convictions and sentences became final in

2020. See Smith, supra. Thus, on its face, relator’s APCR, filed with the district

court on March 21, 2024, is untimely. Except as provided in La. C.Cr.P. art.

930.8, the district court has no authority to extend those limits beyond the delays

set forth by the legislature. See State v. Daigle, 593 So.2d 676, 677 (La. App. 3

Cir. 1991), writ denied, 604 So.2d 980 (La. 1992).

However, relator asserts that his original APCR was filed with the district

court on December 13, 2021. In support of his claim, relator submitted to this

Court a copy of his Offender’s Request for Legal/Indigent Mail which is signed

1
Relator was sentenced to an additional five years to run consecutively to the armed robbery sentence
because of the use of a firearm in commission of the armed robbery pursuant to La. R.S. 14:64.3. On appeal, this
Court found that the district court erred by enhancing the sentence under La. R.S. 14:64.3 because the State failed to
provide written notice and include the enhancement in the indictment. As such, this Court vacated the sentencing
enhancement of five years and remanded for correction of the uniform commitment order. Smith, 293 So.3d at 742-
43.
2

by a classification officer, dated December 13, 2021, and bears a hand-written

notation stating, “Post Conviction Application.” Relator also included a copy of

his original, unstamped APCR, which includes a certificate of service signed and

dated by relator on December 13, 2021. According to relator, after an

unspecified period of time had passed without a ruling from the district court

with respect to his APCR filed on December 13, 2021, his family members

contacted the Clerk of Court for the 29th Judicial District Court and were advised

that relator did not have a pending application with the district court. In addition,

relator maintains that the “district court suggested relator resubmit his APCR.”

Thus, in relator’s view, his APCR was timely filed when he first turned over his

APCR to prison officials for mailing on December 13, 2021.

When relator filed his APCR with the district court on March 21, 2024, it

does not appear that he informed the district court that he was resubmitting his

original APCR nor did he include a copy of his Offender’s Request for

Legal/Indigent Mail, dated December 13, 2021. Thus, for all that appears, the

district court was unaware that relator had previously attempted to file his APCR

in a timely fashion.

Pro se filings are subject to less stringent standards than formal pleadings

filed by lawyers. State ex. rel. Egana v. State, 00-2351 (La. 9/22/00), 771 So.2d

638. A pro se petitioner is not to be denied access to the courts for review of his

case on the merits by the overzealous application of form in pleading requirements

or hyper-technical interpretations of court rules. Id. The Supreme Court, in

Houston v. Lack, 487 U.S. 266, 270-71, 108 S.Ct. 2379, 2382, 101 L.Ed.2d 245

(1988), noted the “unique circumstances” of the pro se inmate, finding that unlike

other litigants, “the pro se prisoner has no choice but to entrust the forwarding of

his notice of appeal to prison authorities whom he cannot control or supervise.” As

such, for the purpose of determining timeliness, the actual date of filing for

3

pleadings filed by inmates is the date the pleading is delivered to the prison

authorities. See Houston v. Lack, supra; State ex rel. Johnson v. Whitley, 92-2689

(La. 1/6/95), 648 So.2d 909; State v. Cepriano, 22-77 (La. App. 5 Cir. 3/30/22),

337 So.3d 999, 1002 n.3.

In Stoot v. Cain, 570 F.3d 669 (5th Cir. 2009), the Fifth Circuit applied the

principle of Houston v. Lack to a pro se inmate pleading that purportedly never

reached the intended recipient. Stoot, a Louisiana inmate, claimed to have filed a

pro se writ application with the supreme court after the third circuit denied his writ

application seeking review from the district court’s ruling denying his APCR, but

the supreme court never received the filing. Stoot, 570 F.3d at 670-71. Stoot

asked a relative to investigate after he failed to receive confirmation as to whether

his filing had been received. Id. at 671. When the relative discovered that Stoot’s

writ application was never received, Stoot filed a second writ application that the

supreme court “denied.” Stoot subsequently filed a federal habeas corpus petition

that the district court dismissed as untimely. Id. at 670-71.

On appeal, the Fifth Circuit considered whether Stoot had timely filed his

writ application in state court, thereby tolling the period of limitation on his federal

habeas petition. Id. In support of his claim, Stoot presented an Inmate’s Request

for Legal/Indigent Mail as evidence that he had mailed an earlier writ application

that the supreme court had not received. Id. at 671. The Fifth Circuit concluded

that Louisiana would apply the prison mailbox rule even when the timely pleading

was never received by the state court. Id. Specifically, the Fifth Circuit found:

[A] pro se prisoner’s pleading is deemed filed on the date that the
prisoner submits the pleading to prison authorities to be mailed,
regardless of whether the pleading actually reaches the court. Under
such a rule, it is of course incumbent upon the petitioner to diligently
pursue his petition. A failure to inquire about a lost petition is strong
evidence that the petition was, in fact, never sent.

4

Id. at 672. In doing so, the Fifth Circuit reasoned that “reference to prison mail

logs usually answers the question of when the petition was actually mailed” but

concluded in Stoot’s case that “we are ill-equipped to determine whether Stoot’s

allegations are true.” Id. Accordingly, the Fifth Circuit reversed and remanded

Stoot’s case to the district court for a factual inquiry into whether Stoot submitted a

timely petition.

In the instant case, relator’s APCR filed with the district court on March 21,

2024, standing alone, appears to be time-barred. However, like the scenario

presented in Stoot, supra, relator has submitted an Offender’s Request for

Legal/Indigent Mail, dated December 13, 2021, as evidence of his earlier filing.

Relator also sought assistance from a family member to inquire as to whether his

APCR had been ruled upon by the district court. Although the timing of the

inquiry is unclear, after learning that the APCR had never been received, relator

subsequently filed another APCR with the district court. We find relator’s case

warrants a determination by the district court as to whether relator’s original APCR

was timely filed under the mailbox rule. See Houston v. Lack, supra.

DECREE

Accordingly, for the reasons stated herein, this writ application is granted.

We reverse the district court’s judgment that denied relator’s APCR, and remand

this matter to the district court for consideration as to whether relator’s original

APCR was timely.

Gretna, Louisiana, this 10th day of June, 2024.

FHW
JGG
SUS

5

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 06/10/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

24-KH-198
E-NOTIFIED
29th Judicial District Court (Clerk)
Honorable Connie M. Aucoin (DISTRICT JUDGE)
Honorable M. Lauren Lemmon (DISTRICT JUDGE)
No Attorney(s) were ENOTIFIED

MAILED
Jerel Smith #170560 (Relator) Hon. Joel T. Chaisson, II (Respondent)
District Attorney
Louisiana State Penitentiary Twenty-Ninth Judicial District Court
Angola, LA 70712 Post Office Box 680
Hahnville, LA 70057

>C!EJC tc • •

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Post Office Box 680
Hahnville, LA 70057
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